Although ยง 12-19-71, Ala. Code 1975, provides a filing fee in civil cases of $145 for all cases filed after October 1, 2000, this Court has recognized that there are separate county costs that may increase that filing fee beyond the statutory maximum of $145. See, e.g., Neal v. State, 803 So.2d 586 (Ala.Crim.App. 2001), citing Act No. 79-751, Ala. Acts 1979 (providing for an additional law library fund fee of $2.00 in all cases in circuit and district courts in counties that have established law libraries under the act), Act No. 93-564, Ala. Acts 1993 (providing for an additional juvenile court-services fund fee of $3.00 in all cases, except small claims, in circuit and district courts in Elmore County), and Act No. 99-530, Ala. Acts 1999 (providing for an additional county treasury fee of $5.00 in all cases, except small claims, in circuit and district courts in Elmore County), as examples of such county costs. The record in this case does not show that the $42 discrepancy between the $145 statutory filing fee and the $187 filing fee assessed against Conners was the result of separate county costs, nor does it show that the discrepancy was not the result of such separate costs.
We reverse the judgment and remand this case to the circuit court with instructions that it enter an order vacating Bostwick's removal from the work-release program. However, for the reasons set out in the special concurrence inNeal v. State, 803 So.2d 586 (Ala.Crim.App. 2001) (Wise, J., concurring specially), we urge the Supreme Court to revisit its holding in Ex parte Berry, and return to the well-established principle that inmates of Alabama's prison system do not have a liberty interest in their custody classification, or in remaining on work release. See Handley v. State, 549 So.2d 630, 631 (Ala.Crim.App. 1989) (custody classification); Dukes v. State, 576 So.2d 683, 684 (Ala.Crim.App. 1991) (work release).
ยง 12-19-70(b), Ala. Code 1975. See Ex parte Coleman, 728 So. 2d at 707 (noting that a trial court "may protect itself from prolific litigants" by "tax[ing] the fee as costs at the end of the proceeding") (citing ยง 12-19-70(b)); Ex parte Beavers, 779 So. 2d at 1224 (noting the provision in ยง 12-19-70(b) for an initial waiver of the docket fee for an indigent prisoner followed by an imposition of the fee at the conclusion of the case); Castillo v. State, 786 So. 2d 1147, 1149 (Ala. Crim. App. 2000) (noting that "the court may properly tax the cost of the filing fee to the petitioner at the conclusion of the case, even if the petitioner has previously been determined to be indigent"); and Neal v. State, 803 So. 2d 586, 588 (Ala. Crim. App. 2001) (noting that "docket fees can be waived for indigent petitioners because of the processes that allow an indigent inmate to repay those costs"). In 2002 this Court amended Rule 32.6(a) to add language allowing for after-the-fact recovery of indigent filing fees:
ยง 12โ19โ70(b), Ala.Code 1975. See Ex parte Coleman, 728 So.2d at 707 (noting that a trial court โmay protect itself from prolific litigantsโ by โtax[ing] the fee as costs at the end of the proceedingโ) (citing ยง 12โ19โ70(b)); Ex parte Beavers, 779 So.2d at 1224 (noting the provision in ยง 12โ19โ70(b) for an initial waiver of the docket fee for an indigent prisoner followed by an imposition of the fee at the conclusion of the case); Castillo v. State, 786 So.2d 1147, 1149 (Ala.Crim.App.2000) (noting that โthe court may properly tax the cost of the filing fee to the petitioner at the conclusion of the case, even if the petitioner has previously been determined to be indigentโ); and Neal v. State, 803 So.2d 586, 588 (Ala.Crim.App.2001) (noting that โdocket fees can be waived for indigent petitioners because of the processes that allow an indigent inmate to repay those costsโ). In 2002 this Court amended Rule 32.6(a) to add language allowing for after-the-fact recovery of indigent filing fees:
"`"[T]o preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof. . . ."' McKinney v. State, 654 So.2d 95, 101 (Ala.Crim.App. 1995) (quoting Buice v. State, 574 So.2d 55, 57 (Ala.Crim.App. 1990))." Neal v. State, 803 So.2d 586, 588 (Ala.Crim.App. 2001). If a party does not raise an issue in the trial court and does not preserve the issue for review, then this Court may not consider it. Wofford v. Safeway Ins. Co. of Alabama, 624 So.2d 555, 559 (Ala. 1993) ("It is a fundamental tenet of appellate review that the trial court cannot be put in error on the basis of matters that were not presented to it."); State of Alabama ex rel. Ohio v. E.B.M., 718 So.2d 669, 671 (Ala. 1998) ("Appellate courts will not consider an issue that was not properly raised or pleaded in the trial court.
However, Clancy failed to object to the flight instruction at the trial level; consequently, his argument was not preserved for appellate review. Rule 21.3, Ala. R.Crim. P.; see Neal v. State, 803 So.2d 586, 588 (Ala.Crim.App. 2001). Based on the foregoing, the trial court's judgment is affirmed.
My dissent in this case, however, should not be interpreted to mean that I agree with the Supreme Court's holding in Ex parte Berry. Indeed, as I have written on several occasions, I do not believe that inmates such as Berry and Thomas have a protected liberty interest in remaining on work release; thus, removal from work release does not trigger the due-process requirements established in Wolff v. McDonnell, 418 U.S. 539 (1974). See my special writing in Neal v. State, 803 So.2d 586 (Ala.Crim.App. 2001) (Wise, J., concurring specially), urging the Supreme Court to revisit its holding in Ex parte Berry.
Thus, the protections set out in Wolff v. McDonnell apply. Although the judge who authored this opinion disagrees with the holding in Ex parte Berry, see Neal v. State, 803 So.2d 586 (Ala.Crim.App. 2001) (Wise, J., concurring specially), this Court is nevertheless required to follow its holding. See ยง 12-3-16, Ala. Code 1975.
Because Fincher did not present this claim to the circuit court, it was not properly preserved for review. See, e.g., Neal v. State, 803 So.2d 586 (Ala.Crim.App. 2001). Moreover, even if this issue were preserved for review, it is meritless.
(Compiled September 30, 2001). 819 So.2d 633 808 So.2d 68 803 So.2d 586 Title Docket Date Disposition Number Elmer Louis McFall and Sandra Elaine 2000959 07/09/2001 Transferred to McFall v. Clayton Sims and Peggy Sue Sup.Ct. for lack of Sims subject-matter jurisdiction Terrence Hollins et al. v. State 2000961 07/06/2001 Dismissed on motion of appellant Cherry Suzette Shirley v. Bobby Elrod 2000971 07/31/2001 Dismissed on motion of appellee Aramark Corp. v. Phyllis Boles 2000972 07/31/2001 Dismissed as not from an